Knowing Your Property Rights Will Help You Navigate Phase 2 of Maui Clean-Up

The Army Corps has begun Phase 2 of efforts to clean up the Maui Fires mess. Phase 1 involved removing toxic materials and other public health and safety hazards.  

 A difference between Phase 1 and Phase 2 is that in Phase 2, officials must obtain permission to step onto each lot that they want to clean. Permission was unnecessary in Phase 1 because reducing immediate risks to public health and safety took priority over heeding private property rights.  

Who do they have to ask for permission? 

Usually the owner, unless the property is being leased to a tenant. (Side note: In Hawaii, the complete destruction of a leased building gives tenants the opportunity to break their lease. It does not terminate the lease automatically. If you are unsure of whether there is an active lease on your property, the best advice is to speak with a landlord-tenant lawyer.) Technically, the Army Corps must ask whoever holds the right of entry on the property (more details on this below). 

What is a “right of entry,” exactly? 

Here is the short answer: Right of entry means authorization to physically be on a privately owned piece of land. In order to remove debris on private properties, the Army Corps and its machinery will have to physically be on the land needing clean-up. To do that legally, they must get permission. By signing a right of entry form, you are giving the Army Corps permission to step onto your land. (The form itself probably says you are giving the Army Corps permission to remove debris from your property in addition to merely existing on it.) Think of the right of entry as being a physical thing – let’s say it’s a twig. Whoever is holding that twig has permission to enter the property, and has the ability to give the twig to somebody else. 

What if the property is being leased to a tenant? 

Then the Army Corps probably has to ask the tenant, not the owner, for right of entry. In a typical tenancy agreement, the owner of the property gives “possession” of the property to the tenant in exchange for rent. “Possession” means you can use the property for your purposes, and you can prevent other people from using the property. The right to enter the property is part of possession. Think of possession as the tree branch that the right-of-entry twig is sticking off of.  

If you are or were, prior to the fire, involved in leasing any real property (i.e. land and/or buildings), you must read the lease to determine whether the right of entry to the leased property is yours to give away. A qualified attorney can help you with this. 

What happens to the insurance money I’m entitled to through my homeowner’s policy? 

The right of entry form likely includes permission for the government to be reimbursed up to the amount defined in your insurance policy specifically for debris removal. If there is no specific amount, then (according to mauirecovers.org) the government will collect whatever money is left over after you’ve rebuilt your property. 

What if I receive money through Governor Green’s Ohana fund, or through legal action against HECO and others? 

This is unclear at the moment. The best thing you can do right now is to seek the advice of an attorney. Attorneys have a duty to put their clients’ interests ahead of everything else. If you are uncertain of how participation in the Ohana fund or a lawsuit could affect your property rights or your entitlement to insurance money, the best way to protect yourself is to reach out to an experienced fire lawyer.  

If you lost property in the Maui Fires, Mālama Law Group  (808) 215-7833 is available to answer your questions. 

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